A former middle school teacher in Idaho is facing up to 10 years in prison for downloading Simpsons porn—that is, pornographic cartoons depicting child characters from The Simpsons engaged in sexual acts. After a search warrant led to the discovery of more than 70 such images on his computer, 33-year-old Steven Kutzner immediately resigned and pled guilty at a subsequent hearing.The prosecution raises serious constitutional issues. The Supreme Court has held that "virtual child pornography"--e.g., cartoon depiction of child-characters having sex--is protected by the First Amendment because, unlike real child pornography, it doesn't require the actual abuse of actual children to be created. See Free Speech Coalition v. Ashcroft. Congress responded by narrowing the statute somewhat. Now it is a felony to possess:
a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that . . . depicts a minor engaging in sexually explicit conduct; and is obscene . . . .
Importantly, this requires that the depiction actually be "obscene," and obscenity is a Supreme Court code word for "unprotected speech." But there's still a problem: Stanley v. Georgia establishes that the government cannot outlaw the mere possession of even obscene materials--at least not in the home:
[M]ere categorization of these films as "obscene" is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds.So one would think that Kutzner would have a strong case that the statute is unconstitutional as applied to him: the mere possession of obscene materials--even obscene materials involving cartoon children--cannot be criminalized under Stanley. But a review of the plea agreement shows that he has agreed to waive any right to appeal the constitutional issues. Why?
Maybe because the "Simpsons" porn wasn't all that they found on his computer. Most notably, Kutzner's "porn" folder on his hard drive also contained 8,489 files containing images described as "possible Child Erotica." That is, "non nude or semi nude photographs and videos of children in sexually suggestive poses that are not themselves images of child pornography, but still fuel the fantasies of pedophiles." Kutzner also had two different "cleaning programs" on his computer, the purpose of which was to erase all vestiges of deleted files. So maybe Kutzner wouldn't be the best defendant for a challenge of this seriously suspect statute. Not to mention the fact that he was a middle-school teacher...
By the way, my favorite part of the plea agreement is the "proof" that Bart, Lisa, and Maggie are "minors": "An internet search of the encyclopedia website www.wikipedia.org listed the three minor-aged Simpsons characters ages as ten, eight, and baby." Ten, eight, and ... baby. Thank goodness for the authority that is Wikipedia.
Perhaps you need to read the plea agreement a little closer. Those 8,489 files of "possible Child Erotica" were not found in his porn folder. Most of them came from the windows recycler and unallocated space, meaning they had been deleted.
ReplyDeleteMore interesting is that he has to forfeit all of his property "to disgorge the defendant's wrongfully obtained criminal proceeds for the benefit of the defendant's victims."
I doubt they feds are going to hunt down those possible children depicted (otherwise he would have been charged with the real shit), but I hope Matt Groening and everyone working on The Simpsons get their fair share.
Wikipedia also tells us that Maggie was born in 1993. If only Kutzner had waited a year, she would have been legal!
ReplyDeleteAnonymous #1: You are correct that the plea agreement says that a "majority" of those particular images were found in the windows recycler and unallocated space. Not sure if that is supposed to be relevant to anything I said, or merely a pedantic correction. (Please enlighten me if the former.)
ReplyDeleteBut as long as we're picking nits, you are wrong that defendant agreed to "forfeit all his property." He agreed, as is standard, to forfeit "assets traceable to the offenses, [and] assets used in the commission of the offenses ... Specifically, ... the property identified in the Forfeiture Allegations of the Information." Unsurprisingly, the property identified in the Information is his computer and hard drive. It is very likely that this will be the extent of the forfeiture.
Bart, correct me if I'm wrong, but for him to be charged with downloading child porn he would have to "knowingly possess" it. The thing about the internet is that by the time you find out what you have downloaded, you already possess it. So if he found that the cutekitty.jpg he had downloaded was in reality child porn, and he immediately made efforts to delete this material, he shouldn't be charged with it, right?
ReplyDeleteAs for my second point, I'm not a lawyer so perhaps my reading was overbroad. But when I read that the defendant is to complete a financial statement disclosing all of his income and sources of income, as well as any assets that he has exercised direct or indirect control over in the past three years (section H). And also that "[t]he forfeitability of any particlular property pursuant to this Agreement shall be determined as if defendant had survived, and that determination shall be binding upon the defendant's heirs..." (section J). It sounds to me like he is going to be forfeiting much more than just a computer and hard drive. Perhaps my understanding is clouded by reading horror stories about drug forfeiture laws at www.fear.org and http://www.ij.org/index.php?option=com_content&task=view&id=3114&Itemid=165
Thanks for the clarification.
ReplyDeleteYou are correct that the crime Kutzner is charged with requires a "knowing" possession. I take it that your point is that, because most of the "Child Erotica" pictures were deleted, it is possible that he simply downloaded them by mistake and promptly deleted them (as in your "cutekitty" scenario). Actually, I think that would still be "knowing possession," since he did possess them and he (eventually) knew what they were (after looking at them). But a prosecution in that case could certainly be unfair, if the downloads were legitimately inadvertent. In fact, the statute carves out a specific affirmative defense to cover this kind of scenario:
"[I]t shall be an affirmative defense to a charge of violating subsection (b) that the defendant . . . (1) possessed less than 3 such visual depictions; and (2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any such visual depiction . . . (A) took reasonable steps to destroy each such visual depiction; or (B) reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction."
Note that this even this defense applies only if there are three or fewer of the offending images. This gets at the weakness of the defense in this case. The fact that there were thousands of these images, makes it pretty unlikely that it was all just a mistake.
As to the forfeiture, I can see how you would get that impression, and your paranoia is certainly justified. But I believe all that language is basically boilerplate that is going to be in every plea agreement involving a criminal forfeiture, just to make sure the government's rights are as broad as possible.